FEDERATION OF PAKISTAN AND 2 OTHERS vs MUHAMMAD HANIF

' The revision was listed for hearing on 13-9-1980. None appeared for the respondent. The case has been re-listed and same is the position today.

2: The petitioners filed an appeal on 21-9-1972 under section 17 of the Payment of Wages Act before the District Judge, Lahore. The same was admitted to hearing on 23-9-1972. Notice was issued to the respondent for 4-11-1972 and when the appeal was taken up on that date, none appeared on behalf of the appellant, though the respondent was present. The appeal was adjourned to 18-12- 1972 and the learned counsel for the petitioners-appellants turned up in Court after the adjournment had been granted and he was intimated the next date of hearing i,e, 18-12-1972. When the case was taken up on 18-12-1972, none appeared on behalf of the petitioners-appellants when called earlier in the day and ultimately at 2-05 p.m. It was dismissed for non-prosecution.

3. The petitioners filed an application under Order XLI, rule 19 read with section 151, C. P. C. For the restoration of the appeal on the ground that the learned counsel inadvertently omitted to enter the date in the diary. The learned District Judge found the ground to be insufficient and refused to restore the appeal and dismissed the application for restoration. Hence this revision.

4. All Rules/Regulations/procedures of Courts are intended to secure the proper administration of justice and should be subordinate to that purpose and the Court should lean in favour of adjudication on merits rather than stifling proceedings on technicalities and in this regard I would refer to the view taken in The That Engineering Industries Ltd. v. The Bank of Bahawalpur Ltd. (1).

' In akin circumstances it was held to be a sufficient ground for the restoration of the matter by the Supreme Court of Pakistan in Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan

(2) and by the Lahore High Court in Maulvi Abdul Qasim v. Haji Abdul Razaq (3).

Once the appeal was admitted to hearing the learned District Judge should have disposed of the matter on merits and not on the short ground of default. While there can be some justification for dismissing an appeal exclusively on ground of default where the case of the defaulting part is likely to be prejudiced because of absence of proper legal assistance, there is no justification for not deciding an appeal on merits in favour of the party committing default when the appeal calls for a decision in his favour on the basis of the evidence and other material already existing on record, as in my humble view the rendition of justice is not an act of grace on the part of the Court but a solemn duty enjoined upon it. I am of the view that the principle incorporated in Order XVII, rule 3 and Order XLI, rule 19, C. P. C. Would be attracted to the facts of the case, and I find support for my view on the; analogy of principle stated in Manzoor Ahmad Bhatti v. Road Transport Corporation (4), wherein the scope of Order IX, rule 7, C. P. C. Has been examined in detail.

5. Bearing in mind the principles of law enunciated in Bibi Gurdevi v. Ch. Muhammad Bakhsh and others (5), S. Zafar Ahmad v. Abdul Khaliq (6), Ch. Ahmad Din v. Australasia Bank Ltd., Bhalwal (7), Bahadur Shah v. Sharaf etc. (8) and Muhammad Akram v. Muhammad. Aslam (9) (wherein I have summed up the judicial consensus up-to-date on the question of the nature of revisional jurisdiction), I accept the revision and admit the appeal' and remand the case to the District Judge, Lahore, for decision on merits. In the particular circumstances-of the case the parties are left to bear their own costs. . Case remanded. {{FOOT NOTE}}

(1) 1979 SC M It 32 (2) 1968 SCM R 837

(3) PLD 1957 Lab. 204 (4) PLD 1973 Lab. 659

(5) AIR 1943 Lah. 65 (6) PLD 1964 Kar. 149

(7) 1971 SCMR 507 (8) PLD 1973 Lah. 513

(9) PLD 1979 LA. 782 {{FOOT NOTE}}